{ "id": 11917814, "name": "PATRICIA GRAHAM, Plaintiff-Appellant v. RONALD ROGERS and HARDEE'S FOOD SYSTEMS, INC., Defendants-Appellees", "name_abbreviation": "Graham v. Rogers", "decision_date": "1996-02-06", "docket_number": "No. 9418SC400", "first_page": "460", "last_page": "466", "citations": [ { "type": "official", "cite": "121 N.C. App. 460" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "76 ALR2d 953", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "432 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532594 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0303-01" ] }, { "cite": "418 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313651 ], "year": 1992, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0586-01" ] }, { "cite": "341 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714944, 4719591, 4715636, 4716697, 4717148 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0587-05", "/nc/315/0587-02", "/nc/315/0587-03", "/nc/315/0587-04", "/nc/315/0587-01" ] }, { "cite": "331 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "764-65" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526666 ], "year": 1985, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0098-01" ] }, { "cite": "258 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "298 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569817 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0231-01" ] }, { "cite": "409 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "748", "parenthetical": "\"We are aware of the case law that allows written orders to be entered out of session in those situations where the trial court made an oral ruling in open court and in session.\"" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522405 ], "year": 1991, "pin_cites": [ { "page": "489", "parenthetical": "\"We are aware of the case law that allows written orders to be entered out of session in those situations where the trial court made an oral ruling in open court and in session.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0487-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "285" } ], "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "358 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "320 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729461 ], "year": 1987, "pin_cites": [ { "page": "415-16" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0404-01" ] } ], "analysis": { "cardinality": 656, "char_count": 14629, "ocr_confidence": 0.738, "pagerank": { "raw": 1.1902443323403891e-07, "percentile": 0.5912344696544084 }, "sha256": "0f0db1203b8bdb6f022d5a3e77ff188bf30a586582db77256c4313b321b75ebe", "simhash": "1:b76aec26a84f9078", "word_count": 2413 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "PATRICIA GRAHAM, Plaintiff-Appellant v. RONALD ROGERS and HARDEE\u2019S FOOD SYSTEMS, INC., Defendants-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff appeals from an order granting defendant Hardee\u2019s Food Systems, Inc.\u2019s (Hardee\u2019s) motion to compel discovery and ordering attorney\u2019s fees of $1,000 be paid by plaintiff to the defendants. We find no error and affirm the order.\nPlaintiff first argues the trial court committed reversible error by entering the order out of district and out of term without the consent of the parties. This argument is without merit.\nThe hearing on Hardee\u2019s motion to compel discovery occurred on 11 June 1993, with the written order filed 15 November 1993, which plaintiff argues makes the order entered out of district, out of session, and out of term. However, the transcript clearly shows the trial court made findings of fact and conclusions of law and entered its order in open court at the close of the 11 June hearing. The hearing was held within district and in term. When a trial court, after a hearing, then and there enters a verbal order into the record in open court, a later written version of such order which merely reduces the prior verbal order to writing is not an order improperly entered out of district and out of term. See State v. Smith, 320 N.C. 404, 415-16, 358 S.E.2d 329, 335 (1987); State v. Horner, 310 N.C. 274, 278-79, 311 S.E.2d 281, 285 (1984). See also Turner v. Hatchett, 104 N.C. App. 487, 489, 409 S.E.2d 747, 748 (1991) (\u201cWe are aware of the case law that allows written orders to be entered out of session in those situations where the trial court made an oral ruling in open court and in session.\u201d) Therefore, the trial court\u2019s order is valid.\nPlaintiff next argues the trial court committed reversible error and abused its discretion in awarding defendants $1,000 in attorney\u2019s fees. We disagree.\nOn 2 March 1993, defendant Hardee\u2019s served plaintiff with its First Set of Interrogatories and First Request for Production of Documents. After plaintiff failed to respond to the requests, Hardee\u2019s sent plaintiff\u2019s counsel a reminder letter dated 14 April 1993. The letter advised plaintiff the discovery requests were due 5 April 1993 and if plaintiff failed to promptly respond, Hardee\u2019s would seek an order compelling discovery under N.C.R. Civ. P. 37(a). Plaintiff still did not respond and Hardee\u2019s served plaintiff with a Motion To Compel Discovery on 6 May 1993. Plaintiff faxed unverified answers to defendants\u2019 interrogatories and some of the documents requested on 30 May 1993, with the defendants receiving the hard copies on 3 June 1993. At the time of the hearing, plaintiff had still not produced the medical records nor back tax records requested by the defendants.\nWhen a party fails to answer interrogatories or produce documents in response to a proper request for discovery under the rules of civil procedure, the proponent of the discovery request may move for an order compelling an answer or production of documents. N.C.R. Civ. P. 37(a)(2). As plaintiff\u2019s counsel admitted at the hearing, plaintiff had not properly complied with the discovery requests. The transcript shows the following remarks by plaintiff\u2019s counsel: \u201cFirst off, Your Honor, no doubt we delayed in responding to the Defendants\u2019 discovery;\u201d and later, \u201cJudge, I\u2019m not arguing with the Motion to Compel, and as I stated at the beginning, they are entitled to an order compelling discovery.\u201d The trial court correctly granted Hardee\u2019s motion to compel.\nOnce a motion to compel is granted, the court shall require the party or deponent whose conduct necessitated the motion to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney\u2019s fees, unless the court finds that party\u2019s opposition to the motion was substantially justified or if circumstances make an award of expenses unjust. N.C.R. Civ. P. 37(a)(4). Plaintiff does not argue that her opposition to the motion to compel was substantially justified. Therefore, defendants were entitled to attorney\u2019s fees unless plaintiff proved such an award was unjust under the circumstances.\nPlaintiff argues the award of attorney\u2019s fees was unjust because plaintiff \u201csubstantially complied\u201d with the discovery requests prior to the hearing. There is no merit to this argument. Although plaintiff had tendered answers to Hardee\u2019s interrogatories prior to the hearing, she had not produced the requested medical records. Plaintiff\u2019s counsel expressed there had been a problem in getting the medical records from one of plaintiffs seven doctors, but he gave no explanation for the delay in producing the other records. As he stated at the hearing: \u201cThe question is whether we responded sufficiently to the Request for Production of Documents. Again, no doubt we have not.\u201d- The award of attorney\u2019s fees is not unjust under these circumstances. Further, even if plaintiff \u201csubstantially complied\u201d with the discovery request, she would not avoid operation of the statute. For purposes of Rule 37(a), \u201can evasive or incomplete answer is to be treated as a failure to answer.\u201d N.C.R. Civ. P. 37(a)(3).\nIn her brief, plaintiff presents several other arguments alleging circumstances making an award of attorney\u2019s fees unjust. However, we need not decide whether these circumstances are sufficient to avoid paying the mandatory fees. Plaintiff presented no evidence of these circumstances at the hearing and raised them for the first time in letters addressed to the trial judge after the decision had been rendered. The transcript of the hearing contains the following exchanges between the court and plaintiff\u2019s counsel:\nThe Court: \u201cWhy didn\u2019t you comply with the discovery like you were supposed to?\u201d\nMr. Lisson: \u201cYour Honor, at the time we received and responded \u2014 I can\u2019t tell the Court right now why that wasn\u2019t complied with in time.\u201d\nand:\nThe Court: \u201cWhy are we having this hearing? When they sent you a notice that we\u2019re going to have a hearing to compel discovery, did it ever occur to you to call up and say, Look, I know you\u2019re entitled to discovery. . . . Why didn\u2019t you just call them up and say, Look, let\u2019s don\u2019t go up there [for the motions hearing], and give me ten more days. Did it ever occur to you or to Mr. Downs that you could do that?\u201d\nMr. Lisson: \u201cIt did, Your Honor, and I can\u2019t answer you why it wasn\u2019t done.\u201d\nThe only possible suggestion presented at the hearing of special circumstances justifying delay came in response to defendants\u2019 counsels\u2019 concern that the plaintiff was in Tennessee and was not serious about pursuing the lawsuit. Plaintiff\u2019s counsel stated the plaintiff was in North Carolina, but had been in Tennessee for a family emergency. No further evidence or explanation was given. While plaintiff\u2019s counsel claims in the brief that defendants\u2019 counsel were notified by phone of plaintiff\u2019s alleged reason for delay, no evidence is presented in the record that the defendants were ever notified of any reason or received any explanation prior to the hearing for the failure to timely comply with discovery requests.\nIn an attempt to show \u201cother circumstances\u201d she claims makes an award of attorney\u2019s fees unjust, plaintiff filed a petition for a writ of certiorari seeking to have this Court \u201cconsider . . . that [plaintiff\u2019s counsel] inadvertently neglected to assign as Error the fact that Hardee\u2019s stonewalled discovery by providing totally black and illegible copies of documents in its purported responses to Plaintiff\u2019s Requests to Produce in some instances, and flatly refusing to respond to discovery requests in other instances.\u201d Although the comment to Rule 37 suggests such circumstances could make an award unjust, we must refuse to grant plaintiff\u2019s petition. Under the Rules of Appellate Procedure, a writ of certiorari will only be issued upon a showing of appropriate circumstances in a civil case where the right to appeal has been lost by failure to take timely action or where no right to appeal from an interlocutory order exists. N.C.R. App. P. 21(a)(1). Additionally, our Supreme Court has said: \u201c[A] challenge to the trial court\u2019s settlement [of the record on appeal] may be preserved by an application for certiorari made incidentally with the perfection of the appeal upon what record there is.\u201d Craver v. Craver, 298 N.C. 231, 237 n.6, 258 S.E.2d 357, 361 (1979). Plaintiff\u2019s request fails to meet these criteria.\nFurther, this request does not concern an assignment of error but is simply an impermissible attempt by plaintiff to add additional facts to the record. These facts were not presented for consideration at the hearing on the motion to compel, are not part of the official record, and may not be considered by this Court. N.C.R. App. P. (9)a. Also, it appears these acts by Hardee\u2019s occurred after the order compelling discovery in this case had been entered in open court and could not have affected the order.\nPlaintiff also sought a writ of certiorari in the event this appeal was interlocutory. Since the notice of appeal from the order granting the motion to compel and awarding attorney\u2019s fees was not filed until after summary judgment had been entered in the underlying case, this appeal is not interlocutory.\nA party wishing to avoid sanctions for non-compliance with discovery requests has the burden of proving the non-compliance was justified. Hayes v. Browne, 76 N.C. App. 98, 101, 331 S.E.2d 763, 764-65 (1985), disc. review denied, 315 N.C. 587, 341 S.E.2d 25 (1986). Plaintiff failed to meet this burden, and the trial court properly awarded attorney\u2019s fees to defendants.\nFinally, plaintiff argues the trial court erred by awarding an excessive amount for attorney\u2019s fees. A trial court\u2019s award of sanctions under Rule 37 will not be overturned on appeal absent an abuse of discretion. See, e.g., Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239, (1992), affirmed, 334 N.C. 303, 432 S.E.2d 339 (1993). Here, we find no abuse of discretion.\nDefendant submitted a \u201cStatement of Fees and Costs\u201d alleging that over forty hours of time was spent by three attorneys preparing the motion to compel and participating in the hearing. Even if we accept plaintiff\u2019s argument that this includes time not properly spent on this motion, there remains approximately 10 hours of time spent by attorney Jay Grytdahl and approximately 4 hours spent by attorney Brent Patterson that are directly related to the motion to compel and the 11 June 1993 hearing. Further, Grytdahl incurred $70.28 in travel expenses to attend the hearing. Since Patterson bills at $125.00 per hour and Grytdahl bills at the rate of $150.00 per hour, we cannot say that an award of $1000 for 14 hours to prepare the motion, travel to the hearing from Charlotte to Greensboro and return, and to argue the motion is excessive.\nPlaintiff also complains the award was excessive because the trial court granted attorney\u2019s fees for defendant Rogers, who did not file the motion to compel. However, Roger\u2019s attorney also attended the hearing and the trial court ordered both defendants\u2019 attorney\u2019s to share the $1,000 award for fees. Since we have already determined the award was not excessive based upon the time spent by Hardee\u2019s attorneys preparing and arguing the motion to compel, we fail to see how plaintiff is prejudiced by Hardee\u2019s having to share the award with Rogers. We find no merit to this argument.\nWe also find no merit to plaintiffs argument the trial court\u2019s award of $1000 impermissibly punished plaintiff for matters outside of the motion to compel. A review of the order shows the award was only for \u201cpreparation of this Motion and hearing of said Motion.\u201d\nFor the reasons stated above, we find the trial court did not err or abuse its discretion in granting Hardee\u2019s\u2019 Motion to Compel and awarding $1000 in attorney\u2019s fees. Because we have chosen to address the merits of plaintiff\u2019s appeal, and because of our holding in defendants\u2019 favor, we need not address the merits of Hardee\u2019s\u2019 motion to dismiss and the motion is denied. Plaintiff\u2019s petition for a writ of certiorari is also denied. The order of the trial court is affirmed.\nAffirmed.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Joseph Edward Downs and Jeffrey S. Lisson for plaintiff-appellant.", "Blakeney & Alexander, by W.T. Cranfill, Jr., and Jay L. Grytdahl, for defendant-appellee Hardee\u2019s Food Systems, Inc." ], "corrections": "", "head_matter": "PATRICIA GRAHAM, Plaintiff-Appellant v. RONALD ROGERS and HARDEE\u2019S FOOD SYSTEMS, INC., Defendants-Appellees\nNo. 9418SC400\n(Filed 6 February 1996)\n1. Judgments \u00a7 38 (NCI4th)\u2014 verbal order entered after hearing \u2014 subsequent written order not entered out of district and term\nWhen a trial court, after a hearing, then and there enters a verbal order into the record in open court, a later written version of such order which merely reduces the prior verbal order to writing is not an order improperly entered out of district and out of term.\nAm Jur 2d, Judgments \u00a7\u00a7 79-82.\n2. Discovery and Depositions \u00a7 59 (NCI4th)\u2014 order to compel discovery \u2014 attorney\u2019s fees properly awarded\nThe trial court did not err in awarding defendants $1,000 in attorney\u2019s fees incurred in obtaining an order to compel discovery where plaintiff did not argue that her opposition to the motion to compel was substantially justified, plaintiff failed to show that an award of attorney\u2019s fees was unjust under the circumstances, and the amount was not excessive in light of the number of hours, travel expenses, and travel time spent by the attorneys in pursuing the motion to compel.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 369 et seq.\nTaxation of costs and expenses in proceedings for discovery or inspection. 76 ALR2d 953.\n3. Appeal and Error \u00a7 291 (NCI4th)\u2014 denial of petition for certiorari\nIn an appeal from an order awarding defendant attorney\u2019s fees incurred in obtaining an order to compel discovery, the Court of Appeals denied plaintiff\u2019s petition for a writ of certiorari seeking to have the Court consider that plaintiff\u2019s counsel inadvertently neglected to assign as error defendant\u2019s alleged stonewalling of discovery as a circumstance making an award of attorney\u2019s fees unjust since plaintiff failed to show that the right to appeal had been lost by failure to take timely action or that no right to appeal from an interlocutory order existed; no challenge to the trial court\u2019s settlement of the record on appeal was involved; and the petition did not concern an assignment of error but was simply an attempt by plaintiff to add additional facts to the record. N.C. R. App. P. 21(a)(1).\nAm Jur 2d, Certiorari \u00a7\u00a7 5-14 .\nAppeal by plaintiff from order filed 19 November 1993 by Judge William H. Freeman in Guilford County Superior Court. Heard in the Court of Appeals 21 March 1995.\nJoseph Edward Downs and Jeffrey S. Lisson for plaintiff-appellant.\nBlakeney & Alexander, by W.T. Cranfill, Jr., and Jay L. Grytdahl, for defendant-appellee Hardee\u2019s Food Systems, Inc." }, "file_name": "0460-01", "first_page_order": 494, "last_page_order": 500 }